4.  The applicant was born in 1975 and lives in Zagreb.
5.  On 22 October 2003 an investigating judge of the Zagreb County Court (Županijski sud u Zagrebu) opened an investigation in respect of the applicant in connection with suspicions that on 5 July 2003 he had put at risk the life and limb of others by firing shots in his partner’s flat and that on 6 July 2003 he had attempted to murder three persons by shooting at them in a nightclub. The investigating judge ordered the applicant’s detention but the applicant remained at large.
6.  The applicant appeared before the investigating judge of the Zagreb County Court on 28 April 2004. He was questioned and remanded in custody on the same day.
7.  On 24 June 2004 the Zagreb County State Attorney’s Office (Županijsko državno odvjetništvo u Zagrebu) indicted the applicant in the Zagreb County Court, alleging that on 5 July 2003 he had put at risk the life and limb of others and that on 6 July 2003 he had attempted to murder three persons.
8.  Judge Z.K. assumed responsibility for the applicant’s case as the president of a trial panel of the Zagreb County Court.
9.  On 2 September 2004 a three-judge panel of the Zagreb County Court, composed of Judges D.T., E.D. and M.G., extended the applicant’s detention on the grounds provided for under Article 102 § 1(3) of the Code of Criminal Procedure (risk of reoffending). The relevant part of the decision reads:
“... the accused is indicted under count two, namely that on 5 July 2003 in the flat of his partner S.O. he fired two shots from a gun at a wall, irrespective of the fact that R.Z. and Z.Kor. were present in the same room and that he was aware that the bullets could ricochet from the wall and hurt any of the persons present. Under count one, he is indicted on the ground that on 6 July 2003 in a nightclub, after a verbal dispute with K.G., he fired several times from a gun and then fired all the remaining bullets from the gun at A.P. and M.V. ... with the aim of murdering them, and K.G.’s life was saved by medical intervention.
The above shows the accused’s brutality, determination, high degree of criminal resolve and obvious propensity towards such criminal behaviour, all of which, in the opinion of this court, continues to justify the extension of his detention because of the fear that [if at large] he would commit a further criminal offence.”
10.  On 28 April 2006 a three-judge panel of the Zagreb County Court found that the maximum statutory period of the applicant’s detention had expired and ordered that he be released from detention. Judge M.G. was a member of that panel.
11.  On 16 September 2008 the Vice-President of the Criminal Division of the Zagreb County Court reassigned the applicant’s case to Judge M.G. because in the meantime Judge Z.K. had become a judge of the Supreme Court (Vrhovni sud Republike Hrvatske).
12.  On 27 November 2009 a trial panel of the Zagreb County Court, presided over by Judge M.G., found the applicant guilty of the attempted murder of three persons and dismissed the charge of putting at risk the life and limb of others on the ground that the prosecution had withdrawn that charge. The applicant was sentenced to six years’ imprisonment.
13.  On 2 February 2010 the Zagreb County State Attorney’s Office lodged an appeal with the Supreme Court against the Zagreb County Court’s judgment, seeking a more severe sentence.
14.  The applicant lodged an appeal against the Zagreb County Court’s judgment with the Supreme Court on 16 February 2010, complaining of a number of substantive and procedural flaws, and notably that Judge M.G. had not been impartial. The applicant contended that by being a member of a panel which had extended his pre-trial detention, Judge M.G. had already formed his opinion about the charges against the applicant.
15.  On an unspecified date in 2010, the Supreme Court, acting under Article 373 § 1 of the Code of Criminal Procedure, forwarded the parties’ appeals and the Zagreb County Court’s case file to the State Attorney’s Office of the Republic of Croatia (Državno odvjetništvo Republike Hrvatske) for their examination and opinion.
16.  On 16 March 2010 the State Attorney’s Office of the Republic of Croatia submitted an opinion to the Supreme Court on both appeals, however, this opinion was not communicated to the defence. The opinion reads:
“Please find enclosed the Zagreb County Court’s case file no. K-124/04 concerning the criminal proceedings against the accused Zajko Zahirović, charged with the offences under Article 90 in conjunction with Article 33 of the Criminal Code, which was forwarded [to the State Attorney’s Office of the Republic of Croatia] after the [Zagreb] State Attorney’s Office and the accused’s lawyer had submitted their appeals ...
As to the appeal lodged by the [Zagreb] State Attorney’s Office concerning the sentence, we consider that it was correctly pointed out that the [first-instance] court sentenced [the applicant] to a rather lenient sentence of imprisonment which appears absolutely inappropriate in view of the circumstances of the offence and his personality ... It was correctly pointed out that certain aggravating factors had been significantly underestimated, namely the grave consequences for [the health of] K.G. and the other victims. Furthermore, the [first-instance] court failed to take into account the accused’s attitude towards the victims and the damage caused by the offences, as well as his lack of any remorse for or apology to the victims. This all should be taken into account in the sentencing procedure and should eventually lead to a more severe sentence as requested by the [Zagreb] State Attorney’s Office.
As to the appeal lodged by the defence, it is to be noted that there has been no fundamental miscarriage of justice in the proceedings, within the meaning of Article 367 ... of the Code of Criminal Procedure, concerning the impartiality of the trial judge, who [allegedly] should have been excluded from the case. In his submission the appellant refers to the case-law of the Constitutional Court and the European Court of Human Rights concerning the exclusion of a judge who presides over a trial panel, having already decided on the accused’s detention at the pre-trial stage of the proceedings. The case-law of the Constitutional Court referred to [by the appellant] concerns the particular circumstances of the case at hand and not the [general] circumstances contemplated in Article 36 of the Code of Criminal Procedure. As to the case-law of the European Court of Human Rights, it is to be noted, regardless of the case-law referred to [by the appellant], that a judge’s impartiality is presumed until there is proof to the contrary and since in the case at issue there are no objective circumstances which could raise doubts as to the impartiality of the judge who presided over the trial panel, such case-law is not applicable to the present case.
As to the [complaint alleging] substantive flaws in that no reference was made to the Articles of the amended Criminal Code, it is to be noted that the Criminal Code was not amended as regards Article 90 and that the court in the present case correctly applied the relevant provision ...
As to the factual findings [of the first-instance court], we consider that all the relevant facts have been sufficiently and comprehensibly established. The [first-instance court] based its findings on the report drawn up by the ballistics expert V.M. and, after the assessment of the relevant witness statements, it set out in detail its conclusion that the accused had caused the conflict. Therefore, the argument of self-defence raised in the appeal is not correct because, under the relevant case-law, the person who first drew a gun cannot invoke the defence of self-defence. We also find that sufficient reasons have been given as to the existence of all the elements of the offence, as regards the victims A.P. and M.V., as the accused’s mens rea. The exact place from which he shot the gun was also established without any doubt.
As to the fact that the victim – a policeman [by profession] – also had a gun, we consider that this has no bearing on the factual findings set out in the [first-instance] judgment. This is because no bullets fired from the [victim’s] gun were found in the nightclub, but only one unfired bullet. Therefore, the appellant’s argument that the victim fired his gun is unsupported by the personal and physical evidence. In this connection it is also to be noted that all the relevant facts, other than the statements of the victims and the other witnesses unrelated to the accused Zajko Zahirović, are supported by a 3D reconstruction [of the crime scene] and the report of the ballistics expert M.
Against the above background we propose that the appeal by the State Attorney’s Office be allowed and the appeal lodged by the defence be dismissed as ill-founded.”
17.  On 22 March 2010 the Supreme Court informed the parties that a public hearing would be held on 20 April 2010. The applicant’s defence lawyer, who had represented him throughout the proceedings, was invited to attend but it was expressly stated that the applicant, who in the meantime had been remanded in pre-trial detention until the judgment became final, was not to attend.
18.  On 20 April 2010 the Supreme Court held a public hearing in the presence of the applicant’s defence lawyer and the Deputy State Attorney of the Republic of Croatia (Zamjenik Glavnog državnog odvjetnika Republike Hrvatske).
19.  At the appeal hearing the applicant’s defence lawyer reiterated the arguments set out in his appeal and the Deputy State Attorney of the Republic of Croatia endorsed the arguments set out in the opinion of 16 March 2010 (see paragraph 16 above). The relevant part of the summary record of the appeal hearing reads:
“With the permission of the President, the ... defendant gave the necessary explanations for his submissions, in particular: The defence counsel reiterated the appeal submissions.
The Deputy State Attorney of the Republic of Croatia stated that he endorsed the proposal submitted under Article 373 § 2 of the Code of Criminal Procedure, ...
After that, at 10 a.m., the President decided that the part of the session at which the parties were allowed to be present had concluded and that the decision which the panel would adopt in the course of the session would be made available to all interested parties by means of the delivery of a certified copy of the decision through the first-instance court.”
20.  On the same day the Supreme Court adopted a judgment in which it upheld the applicant’s conviction and increased his sentence to eight years’ imprisonment. The relevant part of the judgment reads:
“The Deputy State Attorney of the Republic of Croatia, after consulting the case file ... in a reasoned opinion of 16 March 2010 ... asked for the appeal lodged by the State Attorney’s Office to be allowed and the appeal lodged by the accused to be dismissed.
...
The accused Zajko Zahirović, in his appeal ... asked to be invited together with his defence lawyer ... to the hearing before the appeal court. The request as regards the defence lawyer has been complied with ..., whereas the appeal court has not found it useful to have the accused brought from pre-trial detention ...
...
The mere fact that the president of the trial panel had ruled on the appellant’s pre-trial detention is not a reason for excluding that judge from the trial ... Since the appellant failed to substantiate any circumstances which could raise doubts as to the impartiality of the president of the trial panel, his argument appears ill-founded.
...
The appeal lodged by the State Attorney’s Office concerning the sentence is well founded ...
The first-instance court ... treated as mitigating circumstances the appellant’s decent behaviour in court, his relative youth, his lack of previous convictions, the fact that he was unemployed, had no assets and was a father of three minor children, one of whom was seriously disabled, and the fact that he was charged with attempting to commit criminal offences. His exceptional determination and criminal resolve, as manifested in committing three criminal offences putting life and limb at risk, were assessed as aggravating circumstances.
Contrary to the criminal offences committed to the detriment of A.P. and M.V., where no harm occurred – which is an additional mitigating factor that, together with other mitigating factors, could have led to the application of the rules on applying a more lenient penalty – the criminal offence committed to the detriment of K.G. resulted in grave consequences since he sustained serious and life-endangering wounds to his vital organs in his twenty-seventh year and at the peak of his career, which was then interrupted by long-term treatment and rehabilitation, although he had not contributed in any significant manner [to the situation], which amounts to an additional aggravating factor. The [appellant’s] behaviour after the commission of the criminal offences, as rightly pointed out in the appeal lodged by the State Attorney’s Office, namely that he escaped to another country, together with the lack of any remorse or apology to the victims, amount to additional aggravating circumstances which indicate that the rules on imposing a more lenient penalty should not have been applied in respect of that criminal offence.”
21.  On 31 May 2010 the applicant lodged a constitutional complaint with the Constitutional Court (Ustavni sud Republike Hrvatske), arguing that his right to a fair trial had been violated, inter alia, because of the lack of impartiality of Judge M.G.; because the submissions of the Deputy State Attorney of the Republic of Croatia to the Supreme Court had not been communicated to him; and because the Supreme Court had not examined him prior to increasing his sentence.
22.  On 23 March 2011 the Constitutional Court dismissed the applicant’s constitutional complaint as ill-founded, endorsing the reasoning of the lower courts. The decision of the Constitutional Court was served on the applicant on 4 April 2011.